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A district court in Oregon recently concluded that the Food, Drug, and Cosmetic Act (FDCA) food labeling requirements preempted a lawsuit brought under state consumer protection law, claiming misleading labeling of a food product. In Henry v. Gerber Products Co., No. 3:15-CV-02201-HZ, 2016 WL 1589900 (D. Or. Apr. 18, 2016), a mother sued under Oregon’s Unfair Trade Practices Act, alleging that Gerber’s labels for its Puffs cereal products are misleading. The Puffs labels prominently feature pictures of fruits or vegetables, but the Puffs do not actually contain those ingredients. The plaintiff alleged that the depiction of fruits and vegetables leads consumers to believe that the Puffs contain those ingredients, not that the Puffs are merely flavored as those fruits and vegetables.

The FDCA establishes extensive and specific food labeling regulations. Relevant here, the FDCA mandates that labels list “the common or usual name” of ingredients other than spices, coloring, or flavoring and that labels disclose if foods contain artificial flavors. Regulations permit a manufacturer to indicate the “characterizing flavor” of a food product, such as a fruit flavor, and describe in detail how labels must report such flavorings. In addition, the Act explicitly preempts most state food labeling requirements if they are not identical to the federal requirements. However, the FDCA preemption clause does not explicitly state whether it encompasses the FDCA’s “catch-all” provision, which lists various ways that a food may be misbranded, including “if its labeling is false or misleading in any particular.” 21 U.S.C. § 343(a).

As a result, a 2010 decision in the Central District of California held that state-law based mislabeling claims are not preempted under Section 343(a). At issue inZupnik v. Tropicana Products, Inc. was the label of Tropicana Pure 100% Juice Pomegranate Blueberry Flavored Blend of 5 Juices from Concentrate with other Natural Flavors, which included pictures of pomegranates and blueberries and emphasized these fruits in larger font than other parts of the product name. See No. CV 09-6130 DSF (RZx), 2010 WL 6090604 (C.D. Cal. Feb. 1, 2010). The court reasoned that Section 343(a) permitted suit “for a ‘false or misleading’ label where the label does not violate another, more specific food labeling statute or regulation.”

In the Henry case, Judge Marco Hernandez rejected the Zupnik court’s reasoning and concluded that the FDCA preempted Henry’s state-law consumer protection claim. The court reasoned that the Zupnick outcome failed to recognize the broader meaning of the overall statutory scheme. Section 343 must be understood in the context of the FDCA’s other labeling requirements — including those that clearly allow companies to use images to represent a fruit flavor, even if the product does not contain the actual ingredient. Because a manufacturer can represent the primary flavor of a food product with an image, such an image does not render a product “misbranded.” Any claim under state law arguing otherwise is preempted.

This division of authority is clearly important for any food manufacturer facing potential lawsuits about labeling claims. But the preemption issue also offers lessons for any company operating in a heavily-regulated industry. Where preemption provisions do not explicitly cover all aspects of a regulatory scheme, companies may find themselves in the position of defending against state-law suits that fall between the cracks. Decisions like Henry indicate an understanding about how a system of regulations works together — yet not all courts demonstrate this same familiarity. Companies facing these suits should make sure in their briefing and argument to help courts understand the regulatory scheme as a whole and interpret preemption provisions in light of their statutory context.

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